43 Kan. 182 | Kan. | 1890
Opinion by
This action was brought by the plaintiff in error before a justice of the peace, where a trial was had, and a judgment rendered in his favor; upon appeal it was tried in the district court by a jury, and a verdict rendered for defendant, and judgment in his favor for costs. The testimony shows mutual neighborly and friendly dealings for a considerable length of time; afterward their friendly relations were broken, and this action was commenced.
Of the complaints made by the plaintiff we shall notice only one — the refusal to give the following instruction, asked by plaintiff:
“The court instructs you that if you believe from the evidence that Martin did not intend to charge Collins for all or any of the items set forth in his answer till after Collins commenced this suit, then he cannot make such charges after the commencement of this suit.”
Abstractly, this instruction correctly enunciates the law. (Stadel v. Stadel, 40 Kas. 646.) It is claimed, however, that
“ Q,. Did you intend at that time to charge him anything ? A. No, sir; but I did not intend he should charge me for a great many things which I did not get.
“Q,. At the time you came back from Massachusetts and found this hay uncut, did you intend to charge him with any of these things that you have here ? A. I did not.
“Q.■ You so testified in the other court? A. That I did not intend to.
“ Q,. The charges were made since he commenced this suit and commenced this litigation ? A. I wanted to get rid of him without any trouble.
“Q,. Right square out, is not that so ? A. State the question again.
“Q. Yon never intended to charge him anything you have figured here, until he sued you ? A. No, sir, I did not intend to charge him anything; I intended to get rid of him the easiest way I could.”
It will be observed that he not only spoke of the item of pasturage, but also embraced in his testimony all items named in his bill of particulars; i. e., “any of these things you have here.” Under this evidence, the plaintiff was entitled to the instruction asked, or one similar to it. None was given by the court touching this phase of the evidence. (Manufacturing Co. v. Nicholson, 36 Kas. 383.)
For this error in refusing to give this instruction we recommend that the judgment be reversed.
By the Court: It is so ordered.
